Thursday, December 11, 2008

Chapter 11. Meeting My Mouthpiece

It took less than seven minutes to get from my office to Serowitz’s building on Madison Avenue. His office was on the sixth floor, and I figured that if his initial diagnosis indicated that I was a terminal patient, I could simply jump out his window.

His office was apparently a shared space, as there were several different name plates on the door next to his, which simply read : Morris Sercowitz, Attorney At Law. Not particularly impressive signage, but I was warmly greeted by his secretary, Sonja, who offered me a bottle of water and told me that “Mr. Sercowitz would be out in a moment.”

Four minutes later, Sercowitz entered the waiting area. He looked younger than I imagined. A trim 5’9”, he had the look of someone that kept his 155 lb body in shape. He had a striking resemblance to the actor James Woods, a similar chiseled face with a thin nose, and a full head of brown hair, with no gray, that touched the top of his double pin-striped suit jacket, which covered a pale blue shirt complimented by an Hermes tie. He hadn’t even smiled when entering the waiting room, and it was obvious that he wasn’t the type for small talk. After curtly saying, “Mr. Bronson, I’m Maury Sercowitz, please come in”, he immediately ushered me into a small, window-less conference room.

He removed his suit jacket with stealth, slipped it over his chair, sat down, grabbed a yellow legal pad from a stack of blank pads on the conference table, and placed his Mont Blanc pen on top of it. He offered me a pad, and said, “You’ll want to take notes, too.” He then turned to the credenza and picked up two bottles of water, one for him, and one for me.

It was apparent that I was expected to speak first, so I proceeded to introduce myself.

“First, I want to thank you for seeing me on such short notice,” I said.

“Not a problem, Mr. Bronson. You come highly recommended, and I’m here to help, if I can.’

“I think that its better that you call me, Josh. My Dad is “Mr. Bronson.” I continued, “This is going to be a bit complicated for me to explain, and I know that you’re accustomed to meeting a variety of “interesting “people, so I first wanted you to have an idea about who I am.” I was hoping to impress upon him that I wasn’t a calculating criminal.

I took out the resume that I had printed out, and slid it across the table.

While he was reviewing my CV, I proactively and somewhat defensively said. “You’ll hopefully see that I have what many people would view as a very accomplished background, the majority of which within the securities industry. My NASD record is completely unblemished, and I’ve never even been accused of doing anything improper, let alone had a formal complaint filed.” I paused in effort for that opening statement to resonate.

“I’ve been a public company CEO, and, as you can see by my resume, I’ve held very senior-level jobs on Wall Street, and I was recruited for each one. Where I come from, reputation is the only asset that you have”, I said, remembering my Dad’s favorite commandments.

“You’ll also see that I have a relationship with Knoll Associates, as I’ve consulted to them on a several projects. I’ve also retained them for other projects. Should their services be necessary in this case, it’s a resource that I can tap into.”

I took a pause so that Sercowitz could have the opportunity to read without being completely distracted.

“Aside from being a government witness in a fraud prosecution several years ago, my interaction with law enforcement has been otherwise social; a friend of mine is the Chief of Police in my town. My “criminal record” is limited to having two speeding tickets over the past ten years. My point in telling you all of this is that I’d like you to know that I’m not the typical client that walks in to a criminal defense lawyer’s office. At least I don’t think I am.”

Sercowitz didn’t break a smile at my ice-breaking, or self-deprecating remark. He simply said, “There’s nothing typical about the people that come to me for help. Contrary to what you might think, criminal defense lawyers do represent innocent people. My job is to provide counsel to the best of my ability, and your being referred by Larry Fallick is a good starting point. The fact that you have friends at Knoll is impressive, I’ve encountered them in the past, and your relationship with them might be helpful, if it comes to that.”

“Before we start, Mr. Bronson, excuse me, Josh—let me introduce myself. Its going to be just as important that you know what my background as it is for me to know about you.”

Sercowitz gave me the three minute snapshot about where he went to school, his having more than twenty years experience as a criminal defense lawyer, and that he considered himself an accomplished trial lawyer. He said that few cases actually went to trial, but that courtroom battles were an area that he took pride in.

He finished with “And contrary to TV shows, where the defense lawyer says “I don’t want you to confess anything to me”, I expect that our relationship will be an open one, and you should know that Lawyer Client privilege is an integral part of the judicial system, even if it does have boundaries. ”

I didn’t know if he was soliciting me to openly confess to a crime, or if it was a subliminal way of cautioning me about what I might want to disclose. I chose the middle ground, and took out the subpoena, with the attached “letter” and slid it across the table.

“I don’t have the time, or the inclination to waste your time. I wouldn’t be hear if I didn’t think I needed help ” I opened my kimona and spent the next fifteen minutes telling him about my background, where I came from, the jobs that I’ve held, and my family. I explained to him that where I came from, reputation is everything, and that I’d never knowingly done anything that would be considered inappropriate. I told him that I had certainly run across some interesting characters over the years, but that I prided myself on performing exhaustive due diligence before getting involved with anyone that I thought was sketchy.

Sercowitz took the cap of his Mont Blanc and started to scribble some notes. I noticed his subdued, steel-cased Submariner Rolex on his wrist. It told me that he was accomplished, yet reserved.

“Were you a Vice President of The Bank, as your signature on the letter indicates?

“No” I said. “I was a consultant at the time. But I had been a Vice President a few years earlier, after the Bank bought the business that I had co-founded.”. I felt as though I were being interrogated again.

He then proceeded to ask me about my relationship with Jake, how we had met, how long we knew each other, etc. I gave as good account as I could, and acknowledged that Jake was a very colorful character, and that he had some even more colorful friends and acquaintances, but throughout the ten years we had known each other, I never had any reason to believe that he ever operated on the wrong side of the law.

Then Sercowitz moved the conversation to the events surrounding the letter. I told him as much as I could remember, including the fact that, over the course of several hours, I had prepared at least five different drafts, all dictated to me by the people on the other end of the phone. I told him that in the first several iterations, I had simply put that Jake had a relationship with the The Bank, and that I had qualified him as a sophisticated investor, and I signed the letter as ‘special consultant’, all of which was precisely accurate.

I told Sercowitz that there had been anywhere between fifteen minutes and a half an hour between each of the conference calls that day, and each time they had called back asking for ‘tweaks’ to the verbiage, each time with more ‘compelling’ text. I told him how I had voiced my concerns about putting something in writing that was overly aggressive, and each time they said that “We really need Sir Anthony to get to New York, we can’t have the production delayed.”

When they had asked me to insert my former “officer title, because it sounded “more impressive”. I told them that I wasn’t (a Vice President), and they said “Don’t worry. It will make the letter better.”

I explained to Sercowitz that I had regretted doing it from the moment that I hit the send button, and acknowledged that it might have been one of the stupidest episodes of my life. I also told him about the subsequent phone call that Nardone made to my boss at The Bank, my call to the him afterwards, and my follow up calls with Jake, who had obviously interceded, because all of the calls had stopped. As far as I could tell, and based on my subsequent calls with Jake, my meeting several months later with Glassman, and the news media attention on the movie, that particular incident wasn’t even a footnote to the financing, the production or the current status of the film project.

Sercowitz, taking copious notes, asked if I had received anything in consideration for drafting the letter, and what I knew about the other people involved.

I explained that I hadn’t solicited, nor was I offered anything, nor did I receive anything from anybody, other than Glassman’s invitation to visit the movie set while they were shooting the film. I didn’t bother to mention the Escalade that Jake had sent, as it had come six months later, and was his way of thanking me for helping to set his up his bridge loan hedge fund, the one that was providing thirty day pre-production loans to indie films. I told Sercowitz what little I knew about the other people that were involved, and how I had known Baldson back in college.

He asked whether I had been drinking that day, or if I had been taking drugs.

“Actually,” I said, “After being pounded on the phone over the course of several hours, I had opened a bottle of Scotch earlier than usual. I vaguely recall my wife asking why I was drinking at four in the afternoon. But, I’d think it would be hard to prove that I was incapacitated, although it would appear to anyone else that I must have been.”

Sercorwitz didn’t even look up.

“I’ve never snorted anything, and I’ve never taken any pills, other than aspirin, and the occasional Tylenol with codeine after having root canal.” I summarized with “I know that temporary stupidity isn’t a defense, so do you think we could go with a temporary insanity plea?””

Again, Sercowitz didn’t flinch at my self-deprecating humor. He merely asked “Do you have any history of mental illness, or are you being treated by a doctor and taking any type of medication.”

I could already envision Lorna on the witness stand, happily testifying to the fact that not only was I crazy, but that I had also made her nuts over the years. And, since, I didn’t think that my self-prescribed occasional pot smoking qualified as medication, nor was I smoking any grass during the day in question, I punted both questions back to Sercowitz with a simple, “My grandfather on my mother’s side suffered from severe depression. In fact, he was one of the first to undergo electric shock treatment, does that help?”

Sercowitz didn’t even blink.

He then grilled me about the conversation that I had with the two Feebs, what they had said to Lorna, and he wanted to know exactly, word for word, what I had said to them when I met with them. I recanted as best as I could, including the fact they hadn’t read me my rights, and some of my sarcastic remarks. I told him that I didn’t think I had made any new friends today.

The back and forth lasted about forty-five minutes, and by the time it was done, I was emotionally and physically exhausted.

“OK” said Sercowitz. “Before I explain what happens next, I don’t mind telling you that I’m a pretty good judge of character. And you were right when you first suggested that I see more than my share of interesting characters. My gut tells me that you’re a smart guy, you strike me as a very forthcoming and honest fellow, but unwittingly, perhaps even under duress, you did something that wasn’t very smart.”

I was somewhat relieved that Sercowitz believed me.

“That said, you signed your name to a document and made at least two misrepresentations; the most important being that you said were a Vice President of The Bank, when you were only a consultant. The fact that you transmitted that document is called wire fraud. Whether you intended to defraud someone out of money, or whether anyone even relied on the misrepresentation is irrelevant.”

This was like being in a doctor’s office after an examination.

Sercowitz continued, “Let’s presume that the movie has been made, or at least is being made, and that the agents that you met with are wrong about the “money going south”. That’s irrelevant too. You might be holier than Moses, but the letter is a smoking gun”

“I feel like someone that’s being told that I have terminal cancer” I said.

“You don’t have cancer, and you’re not going to die. And, if what you’ve told me is accurate, you’re not going to jail either. At least I wouldn’t think so,” Sercowitz caveated.

That last comment was completely uninspiring, and my facial expression spoke volumes about how I felt at the moment.

“I didn’t do very well at sleep away camp, so its fair to tell you that I’d have absolutely no interest in going to jail.”

Sercowitz couldn’t help but take notice of the fact that I was aggressively massaging my temples with both hands. “This is only a subpoena, and you haven’t been arrested. You don’t need to be getting more upset than you obviously already are. It only means that they are looking for information. It doesn’t mean that you are a target of an investigation.”

I took a deep breadth, and Sercowitz continued.

“But, we’ll find out more information, I’m sure of that. In the mean time, it would be helpful if you can produce the original iterations of the letter; that would corroborate your story, and demonstrate that the original intent of what you were asked to do was otherwise polluted by third parties. And, if what you said about Mr. Baron telling you that he hasn’t had a similar ‘knock on his door’ today, and you’re the first person they’ve contacted, that tells me that whatever the government is looking into, they’re starting at the low end of the food chain. They’re guessing that you can lead them higher up.”

This wasn’t sounding very comforting, especially if that meant my being a source of information that might be able to implicate Jake in something far bigger that I wasn’t aware of..

“I’m not sure if I can recover the original iterations” I said. ”I think that I had simply edited over on the same document. I’m not even sure if they’re still on my PC, its been almost two years, and I’ve had to replace my hard drive in the interim.”

“Try to find them”, said Sercowitz, matter of factly.

“OK, I’ll try. And, I’m supposed to appear before the grand jury to tell them what? ” I asked, getting more frustrated by the minute.

Sercowitz continued to try to allay my anxiety, “The subpoena identifies the name of the AUSA that’s handling the matter; I don’t know him personally, he’s probably new to the office. But, I’ve necessarily worked with the other AUSA’s in that office, and I also know the US Attorney that runs the Eastern District. She’s a very capable person, and based on my experience in other matters, she is a very reasonable person.”

He sounded very confident in his relationships. “First thing tomorrow, I’ll call the AUSA and advise him that I’ve been retained to represent you. As far as the subpoena inviting you to appear before a grand jury, we’ll get that quashed for the time being. We first need to call a “time out” so that we can find out what they actually want.”

“OK.”, I said. “That sounds like a plan.” The throbbing in my head started to diminish.

“You’ll need to sign a standard retainer agreement, and provide a retainer of five thousand dollars. I bill out at four hundred and fifty dollars an hour, but in cases like this, we can work out a project-based fee, if you prefer. If we’re lucky, the retainer will cover the entire time I’ll be spending on this matter.” He noticed a look of relief in my eyes, but apparently his cool, non-bedside manner didn’t allow for relief.

“But I won’t mince words, Josh,” he said. :”I don’t believe in luck. If I did, that letter, however the federal agents got hold of it, wouldn’t have re-appeared two years after it was written, and you wouldn’t be sitting here right now.”

This guy hasn’t cracked a smile the entire time that I was sitting there.

“If we have to fight this thing out, you can guess that the legal fees might add up to at least fifty thousand dollars. If we end up going to trial, its going to run at least another one hundred thousand, maybe one-fifty.”

I didn’t flinch, as I didn’t want him to think that I was without the resources to protect myself properly.

“You can look for another attorney, and you’ll discover that I’m actually very reasonable as far as my fees. We have a small office and I’m disciplined about overhead. There are other talented defense lawyers in New York, some of them are celebrities. I don’t thrive on news clippings. I’d encourage you to ask around, and speak to others, not only to get their opinions about your situation, but to get their opinions about me. And you can figure out for yourself what makes the most sense.”

I felt like I was buying a car.

Then the closing summation from Sercowitz: “Based on what you’ve said to me tonight, and your obvious need to clear this up before it gets more complicated, don’t discount the fact that it might get more complicated. Aside from the description of your friend Mr. Bronson, who may or may not be the target of something completely unrelated, these things are often driven by politics, and since you work on Wall Street, you probably know that the Justice Department is on a tear.”

I felt as if I were watching the TV show LA Law.

“They’ve upped their quota on white collar prosecutions, notwithstanding being stretched for resources that have been allocated to terrorism. I’m confused at how or why the Eastern District might have jurisdiction in this matter. The people that solicited you to draft this letter are in California, and/or, with respect to Mr. Bronson, he’s in Nevada. You live in Connecticut. The recipient of your letter is in California. If there is more going on than we know about, and the government does decide to pursue an action against you, your choices can include cooperating in an investigation, which could lead to leniency of some type, or you might decide to go to trial. There could be any number of cards that we can play. But, we’re way ahead of ourselves. We first need to get control of the ball, as best as possible.”

While I was impressed with his assessment of the landscape, his bottom line approach, and his sports analogy, the thought of this actually going to trial was something I hadn’t given much thought to. I explained that if this were to escalate, it would be a career-ender for me.

I did bring up the issue as to whether his not having a background as a federal prosecutor would be something I should be sensitive to. Sercowitz was very self-confident and suggested that his not having previous ties to that office was something that often worked to his advantage.

“I don’t have the cache of being a former prosecutor, but I have almost thirty years of experience working within the arena” he said matter of factly. “And, I don’t have the political baggage that former government prosecutors might bring with them. I don’t owe any favors, and nobody owes me any favors. That often works to my client’s advantage. I can argue that there are too many trade offs that take place between sitting prosecutors and former prosecutors that move to the private sector.”

He certainly was convincing. So, like an errant husband that finds himself shopping for his wife’s birthday present at the very list minute, I took out a spare check that I kept in my wallet, and wrote out the $5000 deposit. It knocked down my checking account balance by more than half, but that would be a topic I’d bring up with Jake.

Sercowitz walked me to the door and said, “See if you can find those drafts. And, a word of caution; the subpoena covers whatever is on your computer. You don’t want to do anything that might be construed as a willful attempt to destroy evidence.”

A lawyer with no bedside manner, and a mind reader.

As he opened the door to let me out, he said “If the Agents should happen to contact you again, don’t answer any of their questions, and simply tell them that you’re now represented by counsel. Give them my contact information. And, if you need reach me for anything when I’m not in my office, you can call me on my cell phone or at my home. Those numbers are on the back of my card.”

Thanking him for his time and for his responsiveness, I left Sercowitz’s office. After I exited the lobby of his building, and still paranoid, I looked up and down the block to see whether there were any Mercury Marquis’s parked on the street, or any dark-suited feebs with walkie talkies. The coast seemed clear, and I headed towards Grand Central. On the walk to the train station, I stopped at a pay phone, and used up the last of the prepaid minutes on the phone card I had purchased earlier, and dialed up Jake’s cell phone. He picked up on the second ring.

“Hi, Its me”, I said, without waiting for a reply. “I just met with the lawyer. He seems okay, although I get the impression he’s more accustomed to representing mobsters. You’d like him, he dresses nice, and he doesn’t mince words.” My sarcasm machine was in full motion.

“I had to give him a five k retainer, and I’m hoping the check I wrote doesn’t bounce. Perfect timing too, that money was budgeted for Lorna’s birthday gift,” A subliminal message that I wasn’t exactly happy about forking over five grand to a lawyer in connection with one of Jake’s endeavors.

“Anyway”, I said, “He was kind enough to tell me that this might end up costing fifty grand, and that’s presuming it doesn’t escalate.” I continued with more couching, “But, I’ve already been told by my friend at Knoll that I should be going with someone that’s a former federal prosecutor, ideally someone from the same office that’s coming after me.”

Jake was long-accustomed to my acerbic wit, “ I’m glad you liked him. But I told you, choose a lawyer that makes you comfortable. And, I also told that you that you’re covered. I’ll wire you the money for the lawyer’s deposit in the morning. If he ends up needing more, I’ll cover it.” The famous ‘you’re covered” line.

“Also, I talked to Danny” Jake said. “He says that everything is great with the film. He says he has no idea what the problem is, and that he’s happy to come forward and say that everything is fine.” Jake finished with, “Go home and relax. Tomorrow is another day. And, don’t let this stop you from getting your wife a birthday present. Putting up with you deserves something nice.”

“My putting up with you is half the problem, but thanks. I really do appreciate your support.”

“Not to worry, friends take care of each other, and you’re my closest friend. Everything will be fine.”

With those words of limited comfort, I said good bye. I had a few minutes before the next train, so I stopped at the concession stand in Grand Central and bought myself a Foster’s, the supersized can, and then caught the 7:10 back to Westport.

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